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Kane v. Village of Southern View

March 10, 2006

RON KANE AND KAREN KANE, PLAINTIFFS,
v.
THE VILLAGE OF SOUTHERN VIEW, AN ILLINOIS MUNICIPAL CORPORATION, JANIE STANLEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, NORA PETROSKY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, THE V.O.I.C.E. OF SOUTHERN VIEW, INC., AN ILLINOIS NOT-FOR-PROFIT CORPORATION, JANIS GRAY, INDIVIDUALLY, WALTER ADE, INDIVIDUALLY, AND LEROY SOLOMON, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge

OPINION

This case is before the Court on motions to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by all Defendants: The V.O.I.C.E. of Southern View, Inc., Janis Gray, Walter Ade, and Leroy Solomon [d/e 18]; and The Village of Southern View, Janie Stanley and Nora Petrosky [d/e 21].*fn1

I. FACTUAL ALLEGATIONS

Plaintiffs Ron and Karen Kane have filed a seven-count complaint. Six of the seven counts are brought pursuant to 42 U.S.C. § 1983. Accordingly, the Plaintiffs have invoked this Court's "federal question" jurisdiction, under 28 U.S.C. § 1331. Pursuant to 28 U.S.C. § 1367, the Plaintiffs have also asserted a supplemental state law claim for intentional infliction of emotional distress.

The Plaintiffs allege that at all relevant times, they resided at property commonly known as 3133 Carman, Springfield, Sangamon County, Illinois. The property is located within Defendant Village of Southern View ("the Village"), an Illinois municipal corporation and body politic situated in Sangamon County, Illinois. The Plaintiffs' property consists of two lots, one improved with a single family residence and the other now improved with a garage. The residence at 3133 Carman is owned by Charles Killen of Peoria, Illinois; however, the Plaintiffs have resided at that address for more than one year and have been authorized by Mr. Killen to have full control over the property regarding its maintenance, construction of primary and secondary buildings thereon and its disposition.

The Plaintiffs allege that Defendants Janie Stanley and Nora Petrosky were at all relevant times residents of the Village and were elected members of the Board of Trustees of the Village. Another Defendant, The V.O.I.C.E. of Southern View, Inc. ("the V.O.I.C.E."), is a not-for-profit corporation, organized and existing under the laws of the State of Illinois. Defendants Janis Gray and Leroy Solomon were at all relevant times residents of the Village and officers, directors and members of the V.O.I.C.E. Defendant Walter Ade was a resident of the Village and a member of the V.O.I.C.E.

At all relevant times, the Village had in full force and effect a comprehensive Code of Ordinances which provided for zoning regulations for the Village. In October 2003, the Village passed Ordinance No. 03-10- 01, an amendment to the Zoning Ordinances. The amendment provided for the sale and service of automobiles in the "C-1" Commercial District.

On February 10, 2004, the Plaintiffs submitted a memorandum to Peggy Grapengeter, the Zoning Trustee for the Village, therein requesting that a hearing be scheduled on the Plaintiffs' request for "a variance to allow for a commercial business to operate at 3133 Carman." On May 7, 2004, while still waiting for their requested hearing, the Plaintiffs submitted an Application for Building Permit to the appropriate Village official. The building permit detailed the proposed garage construction having dimensions of 60' long by 36' wide by 13' high.

On May 7, 2004 David Green, a member of the Village's Board of Trustees who administered building permits for the Village, reviewed the Plaintiffs' Application for Building Permit and subsequently approved the application. On June 7, 2004, the Plaintiffs received notice from the Village that a hearing was scheduled for June 22, 2004 on their request for variance.

The Plaintiffs allege that they appeared at the hearing and were confronted with approximately sixty other residents of the Village appearing in apparent opposition to the variance. Because of the hostility exhibited by other residents, the Plaintiffs were forced to obtain entry into the Village Hall through a back door while being escorted by Village police officers. Some individuals began surging into the building's door and surrounding walls while the Plaintiffs were inside. These individuals acted in a hostile manner while the Plaintiffs were in a confined space, thereby placing the Plaintiffs in imminent fear of harm.

The Village Zoning Board of Appeals eventually moved the hearing from the Village Hall to an open air pavilion located in a park approximately a quarter of a mile from the Village Hall. Over the Plaintiffs' objection, the hearing on their request for a variance took place on that date and lasted approximately three hours and twenty minutes. The Plaintiffs' application for a variance was then denied.

The Plaintiffs allege that on July 12, 2004, the Zoning Board of Appeals submitted their written Findings and Recommendations to the Village's Board of Trustees regarding the Plaintiffs' request for a variance. In the Findings and Recommendations, the Zoning Board of Appeals repeatedly referred to the Plaintiffs' request for variance as an attempt to re-zone the property and further stated that the Board was critical of the building permit, which had been previously approved by Village officials.

On July 12, 2004, the Board of Trustees for the Village met to, among other purposes, review the Zoning Board of Appeals' denial of the Plaintiffs' request for a variance and to vote on such request. At the meeting, a quorum of the Members of the Board of Trustees of the Village was present and the Board voted three to two to reject the Zoning Board of Appeals' denial and to grant the Plaintiffs' request for a variance.

The Plaintiffs allege that on July 14, 2004, certain residents of the Village, including Defendants Janie Stanley and Janis Gray, brought an action in the Sangamon County Circuit Court in Case Number 04-CH-398, therein seeking a declaratory judgment and injunctive relief. The residents who brought this action sought to declare invalid the vote of the Village's Board of Trustees granting the request for a variance, to prohibit the occupation of the garage and operation of the automobile service business therein and to seek demolition of the garage. Following the hearing, the Honorable Robert Eggers preliminarily enjoined the Plaintiffs from using the garage for any use not permitted of a residential garage in the Village.

On July 20, 2004, the Village's Board of Trustees convened a special meeting for the purposes of re-voting on the Plaintiffs' request for a variance. Upon the re-vote, the request for a variance received three affirmative votes and three negative votes, which was insufficient to grant the request.

Because of the deadlock in voting at the July 20, 2004 meeting, the Village rescinded the variance previously granted to the Plaintiffs. Thus, the Plaintiffs are currently allowed to use the garage only as a residential garage. The subject of the Plaintiffs' request for use variance is currently the subject of litigation pending in the Circuit Court for the Seventh Judicial Circuit, Sangamon County, Illinois, in Case Number 2005-L-056.

On September 15, 2004, the V.O.I.C.E. filed its Articles of Incorporation with the Illinois Secretary of State, therein listing Gray as a registered agent and a director and Stanley as a director. According to a newsletter published by the V.O.I.C.E., Gray is the chairperson and Stanley is the treasurer of the corporation.

On April 5, 2005, Stanley and Petrosky were elected to serve as trustees of the Village and were sworn in as trustees at a Village Board meeting held on May 9, 2005, along with two other newly-elected members who were believed to be dues-paying members of the V.O.I.C.E. The Plaintiffs note, therefore, that upon swearing in, four of the seven individuals entitled to vote ...


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